Age-Based Restrictions on Firearms Use and Possession: Applying Bruen’s Inquiry in Historical Context (Part 1)

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

The media frenzy following the attempted assassination of former President Trump has focused on a number of issues, but strangely absent from coverage is much discussion of how a twenty year old was easily able to obtain an AR-15.  Nor has much attention focused on the fact that – a mere two days after this horrific event – the Eighth Circuit Court of Appeals held that Minnesota’s law restricting public carry to those 21 and older was unconstitutional. As of July 2022, 18 to 21 year olds were responsible for six of the nation’s nine deadliest shootings. The carnage that a lone teenager could enact in a single shooting would have been unimaginable to the generation that wrote the Second Amendment. To prevent tragedies such as these, federal and state laws across the country limit the use, possession, or carry of certain firearms by those under 21.  Before the Supreme Court’s controversial decision in NYSRPA v. Bruen, courts largely honored the policy choice of these legislatures and rejected constitutional challenges to firearm laws regulating 18-to-20-year-olds. Tragically, after Bruen, several courts have struck down age limit laws as unconstitutional, misapplying Bruen’s framework and ignoring the long history of limitations on the ability of 18 to 20 year olds to acquire and carry firearms unsupervised. 

These courts have mangled text, history, and tradition, not honored it. Our recent article in the Minnesota Law Review summarizes existing and forthcoming research on the American history and tradition that supports modern day age-limit laws and analyzes the flaws in the analysis by courts that have failed to apply this historical evidence when striking down these laws. Drawing on this research, this post summarizes the historical and legal context in which minors acted at the time of the Founding, when those under the age of 21 were treated as  “infants” by the law and existed within a patriarchal society that gave them few rights, none of which support an unfettered right to acquire and use firearms. In short, any serious historical inquiry into the original meaning of the Second Amendment demonstrates clearly that infants were not among the “people” protected by its text in 1791. Given this fact, challenges to such laws today fail at step one of the Bruen inquiry. The second post in this series, focused on Bruen’s step two, will address the many laws enacted during Reconstruction that expressly restricted those under 21 from possessing or carrying firearms. It will also provide historical context for why those laws were enacted after the Civil War and not at the Founding.

The Supreme Court has not addressed the question of who the Second Amendment protects, and the Court’s guidance on this issue is muddy at best. For better or worse, what Bruen (and Rahimi) unquestionably holds is that courts need to look backward to evaluate the constitutionality of modern laws.  The proper inquiry regarding age-limit laws at step one thus is simple: did the Founders think that infants had a robust and unfettered right to keep and bear arms? The answer when framed in appropriate historical terms is equally simple: no.

Infants in Founding-era law were treated similarly to “idiots” and “madmen,” who were deemed incapable of caring for themselves, and married women under coverture, who were subservient to their husbands. As with infants, these constitutional outsiders were legally disabled and had few rights they could claim in courts. Harsh as this judgment may be to modern ears, it reflects indisputable facts about Founding-era America, which was a highly patriarchal society in which heads of households were the holders of rights and all others were dependents whose rights were mediated by male heads of households. In the rare circumstance where individuals under 21 lived away from their parents or guardians – to attend university – colleges governed minors in loco parentis. Tellingly, both public and private universities banned firearms, including the University of Virginia, where James Madison, the primary author of the Second Amendment, was present during the debate over prohibiting firearms on campus. 

Courts that have struck down age-limit laws have largely done so based on a profound misunderstanding of the militia laws enacted in the Founding era that required those under the legal age of majority to keep and bear arms in militia service.  Gun rights advocates have insisted that individuals under 21 must have Second Amendment rights because they were compelled to serve in the militia and had to provide their own weapons at the Founding. This claim is deeply problematic both as a matter of history and law. First, the obligation to participate in the militia was a duty, not a right. Militia laws are examples of government compulsion; government could and did punish those who did not meet their obligation to serve. Anglo-American law has long recognized that duties or obligations are the correlatives of rights, and a duty does not create a right, contrary to gun rights plaintiffs’ arguments in age-limit cases. A modern-day example is that of the jury: a citizen who has an obligation to appear for jury duty has no right to be chosen to serve. Even some courts that have ultimately held that the government did not carry its burden to identify sufficient historical analogues to support age-limit laws have agreed that the militia laws do not instantiate a finding that those under 21 possessed an unfettered Second Amendment right. This conclusion is unscored by the general understanding of rights at the time of the Founding, when citizens understood rights to exist only in the context of duties to others and the modern-day understanding of individual rights as an absolute shield to government intervention was not commonly accepted. 

Nor is it true that minors were consistently responsible for supplying arms to meet their militia obligations.  Many state laws expressly delegated this task to the head of household in which a minor resided, either a father, guardian, or master. Under common law, those below the legal age of majority could not make legally binding contracts to purchase goods and services outside of a narrow range of necessities, so, in practice, minors would have had difficulty acquiring their own personal firearms. Prosecutions for failing to adequately arm minors also targeted those legally responsible for supplying arms, i.e., the heads of households. 

Some courts have expressed concern post Bruen that allowing Founding era common law limitations on 18-to-20-year-olds to dictate the scope of their Second Amendment rights today would curtail the modern-day rights of women, people of color, or religious minorities. This conclusion rests on a clear error. Applying a rigorous historicist analysis to laws restricting possession and carry of firearms by those under 21 does not require extrapolating the same conclusion to other groups that were once disfavored by American law. Society’s understanding of the rights of these groups has rightfully changed since the time of the Founding, but society’s view of the recklessness of teenagers has not changed. Outside of the Second Amendment context, those under 21 still labor under a variety of legal disabilities that no longer apply to other groups who were constitutional outsiders in 1871. The Supreme Court has held that government can use age as a proxy for other qualities or characteristics in lawmaking; age is not a suspect class or a quasi-suspect class in the context of equal protection. Furthermore, we now have a better understanding why individuals under 21 are not fully capable of evaluating risk accurately. Modern cognitive and neuroscience has taught us that the brain has not fully developed by the age of 21, which limits one’s ability to make responsible decisions. Just as Heller provides that the Second Amendment applies to modern firearms, Bruen does not require legislatures to ignore developments in modern science. Even the most ardent originalist would not suggest that legislators today are limited to the means available to the Founding generation to deal with modern problems. 

Bruen’s focus on history and tradition has undoubtedly expanded gun rights and set new limits on legislative efforts to curb gun violence. Courts cannot then ignore history and tradition when it favors regulation.  As this brief overview of the relevant history and law pertaining to minors and arms bearing in the Founding era demonstrates, courts accurately applying originalism should reject the view that those under the age of 21 historically had an unrestricted right to possess, purchase, and carry firearms.